08. Apprv PSA's with Certain Economic Develpment Consultants

CITY MANAGER
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: VANIAH DE ROJAS, INTERIM ASSISTANT CITY MANAGER
DATE: MAY 23, 2023
SUBJECT: PROFESSIONAL SERVICES AGREEMENTS WITH CERTAIN

ECONOMIC DEVELOPMENT CONSULTANTS

EXECUTIVE SUMMARY
The City Council will consider approving professional services agreements with certain economic development consultants. The City of Downey is seeking to expand its economic development outreachefforts for business attraction and retention. 'Entering into these agreements will help augment current economic development resources and tools.

RECOMMENDATION
That the City Council.-
1 . Approve a Professional Services Agreement with Tierra West Advisors, Inc. for financial real estate and economic consulting services for a one (1) year term beginning on May 23, 2023 for a total contract amount not to exceed $25,000; and authorize the City Manager, or his designee to execute the Agreement, including any non -substantive extension, change orders, purchase orders, and amendment up to the authorized budget amount of $25,000.

2. Approve a Professional Services Agreement with Kosmont & Associates, Inc., dba Kosmont Companies for economic consulting services for a one (1) year term beginning on May 23, 2023 for a total contract amount not to exceed $20,000; and, authorize the City Manager, or his designee, to execute the Agreement, including any non -substantive extensions, change orders, ` purchase ` orders, and amendments up to the authorized budget amount of $20,000.`

3. Approve ' a Professional Services Agreement with Gilbert A. Livas, Inc., for economic consulting services for a three (3) month term beginning on May 23, 2023 with three one (1) month options for a total contract amount not to exceed

PROFESSIONAL SERVICES AGREEMENT WITH CERTAIN ECONOMIC DEVELOPMENT

CONSULTANTS
MAY 23, 2023
PAGE 2
$21,000 for the first three months; and, authorize the City Manager, or his designee, to execute the Agreement with Gilbert A. Livas, Inc., including any non - substantive extensions, change orders, purchase orders, and amendments up to the authorized budget amount of $21,000 and $7,000 a month for each one -month option exercised.

Economic vibrancy is one of the five strategic priorities for the City of Downey. As such, the City has seen impressive growth in the community, from the millions of dollars invested in Downtown Downey, Downey Landing, Promenade at Downey, and along Firestone Boulevard to the hundreds of new jobs created throughout the City.

Though there have been exciting advances, the City is continuing to expand its economic development outreach efforts to attract big and small businesses to the City of Downey and fill key vacancy sites, ensure that the City is a place where business can thrive, and continue to cement the City's status as an economic leader in the region. To this end, the City has been discussing enhancing its economic development efforts, staffing, and programs to place greater emphasis on both attracting and retaining business within the Downey community. These conversations began as part of the City Council's Priorities Workshop this spring, and it is planned that they will continue through the City's budget development and adoption process, allowing that mission to be developed and refined.

In the meantime, obtaining the services of professional consultants to assist the City with emergent and immediate needs will keep the City competitive and ready to act on opportunities as they arise.

DISCUSSION
City staff is requiring the services of consulting firms that are "subject matter experts" in the fields of financial, real estate, and economic analysis, as well as financial and feasibility analyses of proposed development projects, assistance with development negotiations, and examination of alternative financing structures.

Staff requested qualifications from consulting firms providing the aforementioned services, reviewed proposals from the firms including consultant qualifications, fee schedules, and contacted references.

Staff recommends entering into a Professional Services Agreements with Tierra West Advisors, Inc., Kosmont & Associates, Inc., dba Kosmont Companies, and Gilbert A.

Livas, Inc. for economic development consulting services. These firms are experienced in providing economic development and financial consulting services for local municipalities. They have over 30 years of experience with redevelopment, real estate, various housing and commercial developments, financial and economic analysis in both

PROFESSIONAL SERVICES AGREEMENT WITH CERTAIN ECONOMIC DEVELOPMENT

CONSULTANTS
MAY 23, 2023
PAGE 3
the private and public sectors. Retaining their services will help the City address its economic needs in the near term.

In Attachment A of this report is the Professional Services Agreement with Tierra West Advisors, Inc. which includes the scope of work ("Exhibit A") for real estate services, agency administration, project financing, and reports. The hourly rates for Tierra West Advisors, Inc. are referenced in Exhibit °B" of the agreement.

In Attachment B of this report is the Professional Services Agreement with Kosmont & Associates, Inc., dba Kosmont Companies, which includes the scope of work ("Exhibit A") for site analysis, concept plans, financial, market and feasibility analyses. The hourly rates for Kosmont & Associates, Inc., dba Kosmont Companies are referenced in Exhibit °B" of the agreement.

In Attachment C of this report is the Professional Services Agreement with Gilbert A.

Livas, Inc. which includes the scopeof work ("Exhibit A") for facilitation of strategic development meetings, negotiations advisement, and financial opportunity analysis. The monthly rate for Gilbert A. Livas, Inc. is referenced in Exhibit "B" of the agreement.

CITY COUNCIL PRIORITIES
Fiscal Responsibility
Economic Vibrancy

FISCAL IMPACT
Approval of the recommended action will result in an expenditure of $17,000 from the Administration Department, Account No. 10-4-1210-0670 operating budget for FY 2022- 2023 and $56,000 for FY 2023-2024. There is sufficient fund balance for the recommended actions.

ATTACHMENTS
Attachment A — Tierra West Advisors Professional Services Agreement Attachment B — Kosmont & Associates, Inc., dba Kosmont Companies Professional Services Agreement
Attachment B — Gilbert A. Livas Professional Services Agreement

AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES (°Agreement) is entered into this day of May, 2023, by and between the CITY OF DOWNEY, a California municipal corporation and charter city (hereinafter` referred to as "CITY") and Tierra West Advisors, Inc., a California corporation, with its principal place of business at 2616 E. 3rd Street, Los Angeles, Califomia 90033 ("Consultant")
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:

SECTION 4 fBECITALS.

This Agreement is made and entered into with respect to the following facts:
(a) CITY has considered the proposal, dated April 28, 2023 (the "Proposal"), from CONSULTANT for professional services including but not limited to, providing the services as described below in Section 6 of this Agreement. (b) CITY desires to have a highly qualified company to perform such services. (c) CONSULTANT represents and warrants that it is qualified to perform such services and has agreed to do so pursuant to this Agreement; and (d) CITY desires to contract with CONSULTANT on the basis of the following terms and conditions.

SECTION 2. RETEN11ORDECONSULTANT.

CITY hereby retains CONSULTANT and CONSULTANT hereby accepts such retention, to perform those services under this Agreement. CONSULTANT represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees, if any.

SECTION 3. INDEPENDENT CONTRACTOR.

The parties hereby acknowledge that CONSULTANT is, and shall at all times remain as to CITY, a wholly independent contractor and shall not be considered to be an employee of CITY.

Neither CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of CONSULTANT's employees, except as set forth in this Agreement. CONSULTANT shall not represent that it is, or that any of its agents or employees are, in any manner employees of CITY.

In the event that CONSULTANT or any employee, agent, or subcontractor of CONSULTANT providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CaIPERS) to be eligible for enrollment in CaIPERS as an employee of CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CaIPERS benefits on behalf of CONSULTANT or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of CITY. i

ATTACHMENT A

SECTION 4. PRINCIPAL REPRESENTATIVE
The City Manager or his designee of CITY shall be the principal representative of CITY for purposes of this Agreement. John Yonai, Principal, or his designee Shall be the principal representative of CONSULTANT for purposes of this Agreement.

SECTION 5. CONSULTANT NOT AGENT OF CITY.

A. CONSULTANT shall have no authority, expressed or implied, to act on behalf of CITY in any capacity whatsoever as an agent.

B. CONSULTANT shall have no authority, express or implied, pursuant to this Agreement to incur any debt or liability on behalf of CITY or otherwise bind CITY to any obligation whatsoever.

SECTION G. SCOPE OF SERVICES.

CONSULTANT will diligently perform the tasks, in a good and workmanlike manner, which are more specifically identified in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit A, unless otherwise modified or waived in writing by the City Manager.

SECTION 7. STANDARD OF PERFORMANCE.

SECTION S. TIME.

A. CONSULTANT shall devote such time to the performance of services pursuant to the Agreement as may be reasonably necessary for satisfactory performance of CONSULTANT's obligations pursuant to this Agreement:

B. Neither party shall be considered in default of this Agreement to the extent performance is prevented or delayed by any cause, present or future, which is beyond the reasonable control of the party:

SECTION 9. QUALIFICATIONS.

A. CONSULTANT represents and warrants to CITY that it has all necessary professional licenses and/or certificates to legally perform the services under this Agreement.

B. CONSULTANT represents and warrants to CITY that CONSULTANT shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement all necessary licensees and certificates required of CONSULTANT to perform the services.

SECTION 10. TERM.

The term of this Agreement shall Commence on May 9, 2023 and terminate on June 30, 2024.

The term of this Agreement maybe extended by a written amendment to this Agreement signed by the City Manager and CONSULTANT.
2 SECTION 11. COMPENSATION.

A. CONSULTANT will perform those tasks and deliver the services described in this Agreement, in accordance with the terms and provisions of this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference for a total contract price not to exceed Twenty Five Thousand Dollars 001100 ($26,000.00) unless specifically approved in advance and in writing by the City Manager.

B. CONSULTANT shall be paid the compensation at the payment intervals set forth ;in the Payment Schedule (Section 12).

C. Authorized work shall be in strict compliance with the provisions of this Agreement.

CONSULTANT shall provide all labor, materials and equipment, as necessary to perform the services under this Agreement without any additional charge or compensation. CONSULTANT shall not charge for travel time or break time.

SECTION 11 PAYN1EIdT SCHEQULE.

A. CONSULTANT shall submit to CITY a
the subsequent billing periods, as appropriate, throug
thirty (30) days of receiving such statement, review th thereon.

B. CITY shall make no payment for any e
set forth in this Agreement unless such extra service
executed by the City Manager prior to the time that su
monthly itemized statement which indicates
ONSULTANT. The statement shall describe the
iitial commencement date, or since the start of
h the date of the statement. CITY shall, within
e statement and pay all approved charges
xtra, further, or additional services not expressly
and the price thereof is agreed to in writing and
ch extra service is rendered.

SECTION 13, COMPENSATION WITHHELQ.

A. When the CITY shall have reasonable grounds for believing that CONSULTANT will be unable to perform this Agreement fully and satisfactorily within the time fixed for performance; or a meritorious claim exists or will exist against CONSULTANT or CITY arising out of the negligence of CONSULTANT or CONSULTANTs breach of any provision of this Agreement, then the CITY may withhold payment of any amount otherwise due and payable to CONSULTANT under this Agreement.

B. Any amount so withheld may be retained by CITY for that period as it may deem advisable to protect CITY against any loss and may, after written notice to CONSULTANT, be applied in satisfaction of any claim described here.

C. This provision is intended solely for the benefit of CITY and no person shall have any right against the CITY or claim against` CITY; by reason of the CITY's failure or refusal to withhold monies
D_ No interest shall be payable ;by CITY on any amounts withheld under this provision.

E. This provision is not intended to limit or in any way prejudice any other right of CITY.

SECTION 14. RIGHT TO AUDIT AND INSPECT.

CITY shall have the right to audit and inspect all books and records kept by CONSULTANT in connection with the operation and services performed under this Agreement. CONSULTANT shall maintain full and accurate records with respect to all matters covered under this Agreement for a period of three years after the expiration or termination of this Agreement. CITY shall have the right to 3 access and examine such records during normal business hours and to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings and activities.

SECTION 15. OWNERSHIP OF WRITTEN PRODUCTS.

All reports, documents or other written material ('written products') developed by CONSULTANT in the performance of this Agreement shall be and remain property of CITY without restriction or limitation upon its use or' dissemination by CITY. CONSULTANT may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by CONSULTANT.

To the extent applicable, CONSULTANT represents and warrants that CONSULTANT has the legal right to utilize all intellectual property CONSULTANT will utilize in the performance of its obligations pursuant to this Agreement. CONSULTANT further represents that CONSULTANT shall ensure CITY has the legal right to utilize all intellectual property involved in and/or resulting from CONSULTANT's performance of this Agreement. -
All data, documents, discussion, or other information developed or received by CONSULTANT or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONSULTANT without prior written consent by CITY. CITY shall grant consent if disclosure is legally required. All CITY data shall be returned to CITY upon the termination or expiration of this Agreement.

SECTION 16. RIGHT OF TERMINATION.

A. This Agreement may be terminated by either party with or without cause, upon ten (10) days written notice to the other party.

B. All work shall cease at the conclusion of the notice period and CONSULTANT shall be paid for all services satisfactorily provided prior to termination in accordance with the rates as provided in this Agreement.

C. All CITY data, documents, objects, materials or other tangible things shall be returned to CITY upon termination or expiration of this Agreement.

SECTION 17. INDEMNITY.

A. General Indemnification. Except as provided in subdivision (B) below which is applicable to "design professionals" only, CONSULTANT shall defend (with counsel acceptable to CITY), indemnify and hold the CITY, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of CONSULTANT, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attomeys' fees and other related costs and expenses.

The CONSULTANT's duty to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that CONSULTANT and/or its ..v.... ,vl:.cwly V��IIV�Lvv.Vl ally -vl1 a,.11¢1�i 1J�iGlI.II IIy-14i P�73i11GVgp g11111VGFJGI ----------
at Consultant's own cost, expense and risk, any and all such aforesaidsuits, actions c 1 or
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4 officers, employees, agents or volunteers. _CONSULTANT shall pay and satisfy any judgment, award or decree that may be rendered against CITY or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. CONSULTANT shall reimburse CITY and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONSULTANTS obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CITY, its directors, officials officers, employees, and agents or volunteers. CONSULTANT shall not be obligated to defend, indemnify or hold the CITY harmless in any manner whatsoever for any claims or liability arising solely out of the CITY's own negligent acts, errors or omissions or willful misconduct.

B. Design Professionals. The provisions of this subdivision (B) shall apply only in the event that CONSULTANT is a "design professional" within the meaning of California Civil Code section 2782.8(c). if CONSULTANT is a "design professional" within the meaning of Section 2782.8(c), then, notwithstanding subdivision ;(A) above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and `2782.6), CONSULTANT shall defend (with legal counsel reasonably acceptable to CITY), indemnify and hold harmless CITY and CITY's officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of CONSULTANT, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, arising out of CONSULTANTSs performance of any task or service for or on behalf of CITY under this Agreement. The CONSULTANT' duty to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that CONSULTANT and/or its personnel are employees of the CITY, have been misclassified as an independent contractor, or failed to pay any or all necessary state or federal withholdings and/or taxes. Such obligations to defend, hold harmless and indemnify CITY or any CITY officers, officials, employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of CITY or such CITY officers, officials, employees, volunteers and agents. CONSULTANTs cost to defend CITY and/or CITY's officers, officials, employees or volunteers against any such Claim shall not exceed CONSULTANTS proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, CONSULTANT shall meet and confer with CITY (and, if applicable, other parties) regarding any unpaid defense costs. To the extent CONSULTANT has a duty to indemnify CITY or any CITY officers, officials, employees,: volunteers and/or agents under this subdivision (B), CONSULTANT shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from CONSULTANTS negligence, recklessness or willful misconduct_ SECTION 18. CONSULTANT'S LIABILITY FOR PUBLIC LIABILITY AND PROPERTY DAMAGE.

CONSULTANT shall assume all responsibility for damages to property or injuries to persons, including accidental' death, which may be caused by CONSULTANTTs negligent performance of this Agreement, whether such performance` be by themselves, or their agents, or whether such damage shall accrue or be discovered before or after termination of this Agreement.

SECTION 19. LIABILITIES.

A. CONSULTANT shall not assert any claim arising out of any act or omission by any officer, agent, or employee of CITY in the execution or performance of this Agreement against that officer, agent or employee.

B. Nothing in this Agreement shall be construed to give any person other than CITY and CONSULTANT any legal or equitable rights, remedy or claim under this Agreement.

SECTION 20. CQNFLICT OF INTEREST.

A. CONSULTANT covenants that neither it nor any officer of the ,corporation, or partnership, as the case may be, has any interest, nor shall they acquire any interest, directly or indirectly, which would conflict in any manner with the performance of CONSULTANTS services' under this Agreement.

B. CONSULTANT further agrees that in the performance of this Agreement, no person having an interest of the above 'nature shall be employed by him or her.

C_ No person who contracts with CITY, either for the rendition of personal services shall make any contribution to a CITY official or candidate for CITY office.

SECTION 21. NOTICES.

Any notices, bills, invoices or reports required by this Agreement shall be deemed receivers on:
(1) the date if delivered by hand, facsimile or overnight courier service during CONSULTANT's or CITY's regular business hours; or (2) on the third business day following deposit in the United States mail if delivered by jmail, postage prepaid, to the addresses listed below; (or such other addresses as the parties may, from time to time designate in writing):

TO CITY: City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Attn: Roger Bradley, City Manager
With courtesy copy to: City of Downey
City Attorneys' Office
11111 Brookshire Avenue
Downey, CA 90241
TO CONSULTANT: Tierra West Advisors, Inc.
2616 E. 3rd Street
Los Angeles, California 90033
Phone:- (323) 265-4400
Attn: John Yonai, Principal
Rose Acosta Yonai, President
SECTION 22. BINDING EFFECT.

This Agreement shall be binding upon the parties hereto and their successors in interest. 6 SECTION 23. ASSIGNMENT.

A. CONSULTANT shall not assign, transfer, convey, pledge or otherwise dispose of its rights or obligations hereunder, except the payment of funds from CITY, without prior written consent of CITY. Any attempt by CONSULTANT to assign, transfer, convey, pledge or otherwise dispose of its rights or obligations hereunder without the City's prior written consent shall make such assignment, transfer, conveyance, pledge or other disposition null and void.

B. The consent of CITY to an assignment shall not be unreasonably withheld, but prior to approving any assignment involving the performance of any obligations pursuant to this Agreement, CITY shall be satisfied by competent evidence that the assignee is financially able and technically C. In the event of si
compliance with the provisions
D. CITY'S consent
LW `iOVRI G9100IY&111 I II&I kL, LI Q19-%i IIV�y GI 1V 1 ppl�wtw` v SECTION 24. COMPLIANCE WITH LAWS.

SECTION 25. INSURANCE.
ssigned.

Y may condition the same so as to ensure
tall not be deemed to constitute consent to future
TY's written consent must be first obtained prior
r other disposition.

A. Time for Compliance. CONSULTANT shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the CITY that it Has secured all insurance required under this section. In addition, CONSULTANTshallnot allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the CITY that the subcontractor has secured all insurance required under this section. The CITY reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances.

B. Minimum Reguir
and maintain for the duration of the Agreemen
damages to property which may arise from or
the Services or the Project by the CONSULTP
subcontractors. CONSULTANT shall also req
same insurance for the duration of the Agreen
minimum levels of coverage:
men s. CONSULTANT shall, at its expense, procure
insurance against claims for injuries to persons or
connection with the performance of the Agreement,
T, its agents, representatives, employees or
re all of its subcontractors to procure and maintain the M. Such insurance shall meet at least the following
A

M Mmimurnmope cif Insurance. (1) Commercial General Liability (CGL): insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis including products and completed operations, property damage, bodily injury and personal and advertising injury; (2) Automobile Liability. Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if CONSULTANT owns no autos, Code 8 (hired) and 9 (non -owned); and (3)"Workers' Compensation: Workers' Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer's Liability insurance. (ii) Minimum Limits of Insurance. CONSULTANT shall maintain limits no less than: (1) Commercial General Liability (CGQ: No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. if Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreementllocation (ISO CG 25 03 or 25 04) or the general aggregatelimit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation: Workers' Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer's Liability: Employers Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer's Liability coverage may be waived by the CITY If CITY receives written verification that CONSULTANT has no employees.

If the CONSULTANT maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the CITY requires and shall be entitled to the broader coverage and/or the higher limits maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.

C. Professional Liability (Errors & Omissions)., CONSULTANT shall procure and maintain, and require its sub -consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000000 in the aggregate, and shall be endorsed to include contractual liability. If the CONSULTANT maintains broader coverage and/or higher limits than the minimum shown in this subdivision'(B), the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.

D. Insurance Endorsements. The insurance policies shall contain the following provisions, or CONSULTANT shall provide endorsements on forms approved by the CITY to add the following provisions to the insurance policies:
(i) Additional Insured Status. The Commercial General Liability policy; shall be endorsed to state that: (1) the CITY, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the CONSULTANT, including materials, parts or equipment' furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the CITY, its directors; officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the CONSULTANT's scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the CONSULTANT's 8 insurance (at lease as broad as ISO Form CG 2010 1185 or both CG2010, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (ii) Waiver of Subrogation. CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the CITY by virtue of the payment of any loss under said insurance policies set forth herein.

CONSULTANT agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogationendorsement from the insurer.
(iii) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the CITY, and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the CITY, its directors, officials, officers, employees, agents and volunteers
E Primary Coverage. For any claims related to this Agreement, the CONSULTANT's insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 0413 with respect to the CITY, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its directors, officials, officers, employees, agents and volunteers shall be excess of the CONSULTANT's insurance and shall not be called upon to contribute with it in any way.

F. Separation of lnsureds: No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions.' In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the CITY, its directors officials, officers, employees, agents and volunteers.

G. Deductibles and Self -Insurance Retentions. Any deductibles or self insured retentions must be declared to and approved by the CITY. CITY may require CONSULTANT to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self -insured retention may be satisfied by either the named insured or CITY.

H. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, authorized to do business in California, and satisfactory to the CITY.

I. Verification of Coverage. CONSULTANT shall furnish CITY with original certificates of insurance, including all required amendatory; endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the CITY before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the CONSULTANrs obligation to provide them to the CITY. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 9 J. Claims -Made Policies. If any of the policies provide coverage on a claims -made basis:
(i) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (ii) Insurance must be maintained and evidence of insurance must be provided for at least fire (5) years after completion of the Services provided under this Agreement;' (iii) If coverage is canceled, non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the CONSULTANT must purchase extended reporting coverage for a minimum of five (5)'years after completion of the Services under this Agreement.

SECTION 26. DISCRIMINATION,'
A. CONSULTANT agrees that no person shall be excluded from employment in the performance of this Agreement on grounds of race, creed, color, sex, age, handicap or marital status, place of national origin or any other basis prohibited by local, State or Federal law.

B. CONSULTANT agrees to comply with all local, State and Federal laws relating to equal employment opportunity rights_
SECTION 27. ENTIRETY OF AGREEMENT.

This Agreement contains the entire Agreement of CITY and CONSULTANT with respect to the subject matter hereof, and no other agreement, statement, or promise made by any party, or to any employee, officer, or agent of any party, which is not contained in this Agreement shall be binding or valid. Amendments or modifications to this Agreement shall be effective and binding only if made in writing and executed by both parties.

SECTION 2$, ATTORNEYS' FEES.

In the event that any action or proceeding is instituted for the breach of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees.

SECTION 29, CONSISTENCY WITH CURRENT LAW.

A. It is the intent and understanding of the parties to this Agreement that every provision of law required to be inserted in this Agreement is inserted here.

B. If through mistakes or otherwise, any of those provisions are not inserted in correct form, there this Agreement shall upon application of either party, be amended by insertion so as to comply strictly with the law and without prejudice to the rights of either party.

C. If this Agreement contains any unlawful provisions, not an essential part of the Agreement and which appear not to have been a controlling or material inducement to the making of this Agreement, those provisions shall be deemed of no effect, and shall upon application of either party be stricken from the Agreement without affecting the "binding force of the Agreement as it shall remain after omitting those provisions.
10 SECTION 30. VENUE.

In the event that suit shall be brought by either party to this contract, the parties agree that venue shall be exclusively vested in the State courts of the County of Los Angeles or where appropriate, in the United States District Court, Central District of California, Los Angeles, Califomia.

SECTION37. COUNTERPARTS.

This Agreement may be executed in counterparts, each of which shall be an original, but together shall constitute one and the same instrument.

SECTION 32. INTERNAL INC NSISTENCIES.

If this Agreement contains any errors, inconsistencies with any attachments, -ambiguities, or discrepancies, including typographical errors, CONSULTANT shall request a clarification of those items by writing to the City Manager whose decision shall be binding upon the parties.

SECTION 33. CAPTIONS AND HEADNOTES,
The captions and headnotes or sections of this Agreement, and marginal notes are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent of this Agreement.-'
SECTION 34. EFFECT OF CONFLICT.

In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control.

SECTION 35. SUBCONTRACTING.

CONSULTANT shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without priorwritten approval of CITY. CONSULTANT shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. CONSULTANT shall ensure that CITY is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.'
IN WITNESS WHEREOF, this Agreement for Professional Services has been duly authorized and executed by the parties hereto on the day and year first herein above written.

"CITY"

CITY OF DOWNEY
By:

Roger Bradley, City Manager
ATTEST:

City Clerk
PRD AS O FORM:
4rcity Afforriii
APPROVED AS TO FORM:

Legal Counsel
"CONSULTANT"
TIERRWESTSORS INC.
t
,
By:
- AA.A A41j'1dAd.=--
o . ohn N. Yonei, Pfincipal
0119.123869
12 EXHIBIT A

SCOPE OF SERVICES
The Services to be performed by Consultant for the Project pursuant to this Agreement shall include but not be limited to the following specific tasks:
• Prepare financial feasibility pro formas for the project(s),_as requested • Review the proposed site plan and assist in the analysis/development of detailed project plans
• Provide strategic planning recommendations in furthering the site development use requirements
• Prepare alternative development scenarios to determine future financial feasibility • Provide peer review on potential financing necessary to complete the project • Identify project -related City revenue benefits
• Identify project -related ancillary benefits to the City of Downey and its residents • Assist in negotiations, as requested
• Prepare analyses and proposal for alternative resource assistance • Assist in Project presentations to staff leadership, elected officials, and general public • Assist in negotiations for project financing
13 EXHIBIT "B"

COMPENSATION
Presented below are the hourly rates for 2022-2023 and billing policies, as they would pertain to this engagement:

Classification Rate
Principal $19500
Director $180.00
Senior Associate $160.00
Associate $140.00
Senior Analyst $115.00
Analyst $105.00
Research Assistant Technician $ 85.00
Word Processor $ 65.00
Clerical $ MOO
Billing Policies
Tierra West Advisors does not charge clients for mileage (except direct costs related to field work/surveys), parking, standard telephonelfax expenses, general postage or incidental copies. However, we do charge for messenger services, overnight shipping/express mail costs and teleconferencing services. We also charge for copies of reports, documents, notices, and support material in excess of five (5) copies. These costs are charged back at the actual expense.
14 AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES (" Agreement") is entered into this day of May, 2023, by and between the CITY OF DOWNEY, a California municipal corporation and charter city (hereinafter referred to as TITY") and Kosmont & Associates, Inc., dba Kosmont Companies a California corporation, with its principal place of business at 2301 Rosecrans Avenue, Ste. 4140, El Segundo, CA 90245 ("Consultant")
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:

SECTION I RECITALS.

This Agreement is made and entered into with respect to the following facts; (a)CITY has considered the proposal, dated March 31, 2023 (the "Proposal', from CONSULTANT for professional services including but not limited to, providing the services as described below in Section 6 of this Agreement. (b) CITY desires to have a highly qualified company to perform such services. (c) CONSULTANT represents and warrants that it is qualified to perform such services and has agreed to do so pursuant to this Agreement; and (d) CITY desires to contract with CONSULTANT on the basis of the following terms and conditions.

SECTION 2. RETENTION OF CONSULTANT.

CITY hereby retains CONSULTANT and CONSULTANT hereby accepts such retention, to perform those services under this Agreement. CONSULTANT represents' that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees, if any.

SECTIONS. INDEPENDENT CONTRACTOR.

The parties hereby acknowledge that CONSULTANT is, and shall at all times remain as to CITY, a wholly independent contractor and shall not be considered to be an employee of CITY.

SECTION 4. PRINCIPAL REPRESENTATIVE

ATTACHMENT B

The City Manager or his designee of CITY shall be the principal representative of CITY for purposes of this Agreement. Ken'K. Hira, President, or his designee shall be the principal representative of CONSULTANT for purposes of this Agreement.

SECTION & CONSULTANT NOT AGENT OF CITY.

A. CONSULTANT shall have no authority, expressed or implied, to act on behalf of CITY in any capacity whatsoever as an agent.

B. CONSULTANT shall have no authority, express or imply, pursuant to this Agreement to incur arty debtor liability on behalf of CITY or otherwise bind CITY to any obligation whatsoever.

SECTION 6. SCOPE OF SERVICES.

SECTION 7, STANDARD OF PERFORMANCE.

CONSULTANT shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which CONSULTANT is engaged in the geographical area in which CONSULTANT practices his or her profession.'
SECTION'8. 71ME,
A. CONSULTANT shall devote such time to the'performanoe of services pursuant to the F Agreement as may be reasonably necessary for satisfactory performance of CONSULTANT's obligations pursuant to this Agreement.

SECTION 9. QUALIFICATIONS.

A. CONSULTANT represents and warrants to CITY that it has all necessary professional licenses and/or certificates to legally perform the services under this Agreement B. CONSULTANT represents and warrants to CITY that CONSULTANT shall, at its sole r cost and expense, keep in effect or obtain at all times during the term of this Agreement all necessary a licenses and certificates required of CONSULTANT to perform the services.

SECTION 12. TERM.

The term of this Agreement shall commence on May 23, 2023 and terminate on June 30, 2024, The term of this Agreement maybe extended by a written amendment to this Agreement signed by the City Manager and CONSULTANT.

SEA. COMPENSATION.
2 A. CONSULTANT will perform those tasks and deliver the services described in this Agreement, in accordance with the terms and provisions of this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference fora total contract price not to exceed Twenty Thousand Dollars 001100 ($20,000.00) unless specifically approved in advance and in writing by the City Manager.

B. CONSULTANT shall be paid the compensation at the payment intervals set forth in the Payment Schedule (Section 12).

C. Authorized work shall be in strict compliance with the provisions of this Agreemert.

SECTION 12. PAYMI=NT SCHE©ULE.

A. CONSULTANT shall submit to CITY a monthly itemized statement which indicates thereon.

B.
"3NSUI_TANT. The statement shall describe the
itial commencement date, or since the start of
i the date of the statement. CITY shall, within
statement and pay all approved charges
, further, or additional services not expressly
thereof is agreed to in writing and
Ice is rendered.

SECTION 13. COMPENSATION WITHHELD.

A. When the CITY shall have reasonable grounds for believing that CONSULTANT will be rnable to perform this Agreement fully and satisfactorily within the time fixed for performance; or a nertorious claim exists or will exist against CONSULTANT or CITY arising out of the negligence of ;ONSULTANT or CONSULTANTS breach of any provision of this Agreement, then the CITY may B Any amount so withheld'may be retained by CITY for that period as it may deem advisable to protect CITY against any loss and may, after written notice to CONSULTANT, be applied in satisfaction of any claim described here,
C. This provision is intended solely for the benefit of CITY and no person shall have any right against the CITY or claim against CITY by reason of the CITY's failure or refusal to withhold monies.

D. No interest shall be payable by CITY on any amounts withheld under this provision, E. This provision is not intended to limit or in any way prejudice any other right of CITY.

SECTION 14. RIGHT TO AUDIT AND INSPECT.
3'

SECTION '15. OWNERSHIP OF WRITTEN PRODUCTS.

All reports, documents or other written material ("written products'] developed by CONSULTANT in the performance of this Agreement shall be and remain property of CITY without restriction or limitation upon its use or dissemination by CITY. CONSULTANT may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by CONSULTANT.

Ali data, documents, discussion, or other Information developed or received by CONSULTANT or providedfor performance of this Agreement are deemed confidential and shall not be disclosed by CONSULTANT without prior written consent by CITY. CITY shall grant consent if disclosure is legally required. All CITY data shall be returned to CITY upon the termination or expiration of this Agreement SECTION 16. RIGHT OF TERMINATION
A. This Agreement may be terminated by either party with or without cause, upon ten (10) days written notice to the other party.

C. All CITY data, documents, objects, materials or other tangible things shall be returned to CITY upon termination or expiration of this Agreement.

SECTION 17. INDEMNITY.
i
A. General Indemnification. Except as provided in subdivision (B) below which is applicable to "design professionals" only, CONSULTANT shall defend (with counsel acceptable to CITY), indemnify and hold the CITY, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage r or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any negligent acts, errors, omissions or willful misconduct of CONSULTANT, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses.

The CONSULTANT's duly to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, 'liability, loss, damage or injury, in law or equity that CONSULTANT and/or its personnel are employees of the CITY, have been misclassified as an independent contractors, or failed to pay any or all necessary state or federal withholdings and/or taxes. CONSULTANT shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against CITY, its directors, officials, officers, employees, agents or volunteers. CONSULTANT shall pay and satisfy any judgment, award or decree that may be rendered against CITY or its directors, officials, officers, employees, agents or 4 volunteers, in any such suit, action or other legal proceeding. CONSULTANT shall reimburse CITY and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONSULTANT shall not be obligated to defend, indemnify or hold the CITY harmless in any manner whatsoever for arry claims or tiabliiiy arising solely out of the CITY's own negligent acts, errors or omissions or willful misconduct.

B. De i f 'orals. The provisions of this subdivision (B) shall apply only in the event that CONSULTANT is a "design professional" withinthe meaning of California Civil Code s, volunteers and agents from and against any C
iy or indirectly, in whole or in part, the negligenc4
VSULTANT, any subconsultant, subcontractor or
t by them, or any person that any of them oontro
mrforrnance of any task or service for or on behi
ONSULTANT's duty to indemnify shall extend to
osts, expenses, liability, loss, damage or injury,
volunteers shall not
negligence or willful
agents. CONSULM
volunteers against e
fault with respect to
one or more defend
r law'
and CITY's officers,
out of, pertains to
or willful
on directly or
3r this
ims, demands,
that CONSULTANT
lependent
or taxes. Such
vials, employees or
sole active
s, volunteers and
ployees or
a percentage of
in the event that
rtcy or dissolution of
- - --- -- _ _.. - - -- - )ther parties)
regarding any unpaid defense costs. To the extent CONSULTANT has a duty to indemnify CITY or any CITY officers, officials, employees, volunteers and/or agents under this subdivision (B), CONSULTANT shell be responsible for all incidental and consequential damages resulting directly or indirectly, in whale or in part, from CONSULTANTs negligence, recklessness or willful misconduct.

SECTION 18. CONSULTANT'S LIABILITY FOR PUBLIC LIABILITY AND PROPERTY DAMAGE.

CONSULTANT shall assume all responsibility for damages to property or injuries to persons, including accidental death, which maybe caused by;CONSULTANT's negligent performance of this Agreement, whether such performance be bythemselves, or their agents, or whether such damage shall accrue or be discovered before or after termination of this Agreement.

SECTION 19. LIABILITIES.

B. Nothing in this Agreement shall be construed to give any person other than CITY and 5 s
ind confer m

CONSULTANT any legal or equitable rights, remedy or claim under this Agreement.

SECTION 20.-CONFUCT OF INTEREST.

A. CONSULTANT covenants that neither it nor any officer of the corporation, or partnership, as the case may be, has any interest, nor shall they acquire any interest, directly or indirectly, which would conflict in any manner with the performance of CONSULTANT's services under this Agreement.

B. CONSULTANT further agrees that in the performance of this Agreement, no person having an interest of the above nature shall be employed by him or her.

C. No person who contracts with CITY, either for the rendition of personal services shall make any contribution to a CITY official or candidate for CITY office:

SECTION 21. NOTICES.

Any notices, bills, invoices or reports required by this Agreement shall be deemed received on:
(1) the date if delivered by hand, facsimile or overnight overnight courier service during CONSUL TANT's or CITY's regular business hours; or (2) an the third business day following deposit in the United States mail 9 delivered by mail, postage prepaid, to the addresses listed below (or such other addresses as the parties may, from time to time designate in writing):

TO CITY., City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Attn: Roger Bradley, City Manager
With courtesy copy to City of Downey
City Attomeys' Office
11111 Brookshire Avenue
Downey, CA 90241
TO CONSULTANT: Kosmont Companies
1601 N Sepulveda Blvd. #382
Manhattan Beach, CA 90266
Phone: (424) 297-1070
Attn: Ken Hira, President
SECTION 22. BINDING EFFECT.

This Agreement shall be binding upon the parties hereto and their successors in interest.

SECTION 23, ASSIGNMENT.

rights or obligations hereunder without the City's prior written consent shall make such assignment, transfer, conveyance, pledge or other disposition mull and void.

B. The consent of CITY to an assignment shall not be unreasonably withheld, but prior to approving any assignment involving the performance of any obligations, pursuant to this Agreement, CITY shall be satisfied by competent evidence that the assigneeis financially able and technically qualified to perform those services proposed to be assigned.

C. In the event of such assignment, CITY may condition the same so as to ensure compliance with the provisions of this Agreement.

D. CITY'S consent to one assignment shall not be deemed to constitute consent to future assignments. CONSULTANT acknowledges that CITY's written consent must be first obtained prior to each assignment, transfer, conveyance, pledge or other disposition.

SECTION 24. COMPLIANCE WITH LAWS.

CONSULTANT shall comply with all applicable laws in performing its obligations under this Agreement. CONSULTANT shall be liable for all violations of such laws and regulations in connection with this Agreement. If the CONSULTANT performs any work knowing It to be contrary to such laws, rules and regulations and without giving written notice to the CITY, CONSULTANT shall be solely responsible for all costs arising therefrom. CONSULTANT shall defend, indemnify and hold CITY, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any 'failure 'or alleged failure to comply with such laws, rules or regulations. CONSULTANT's violation of such laws, rules and regulations shall also constitute a material breach of this Agreement.

SECTION 26. INSURANCE.

A. Time for Compliance. CONSULTANT shall not commence the Services or the Project under this Agreement until It has provided evidence satisfactory to the CITY that it has secured all insurance required under this section. In addition, CONSULTANT shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the; CITY that the subcontractor has secured all insurance required under this section. The CITY reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances.

B. Minimum Requirements. CONSULTANT shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or darnages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the CONSULTANT, its agents, representatives, employees or subcontractors. CONSULTANT shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement Such insurance shall meet at least the following minimum levels of coverage:
(i) Minimum Scone of Insurance. (1) Commercial General Liabffifyy (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis including products and completed operations, property damage, bodily injury and personal and advertising injury: (2) Automobile Liability. Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if CONSULTANT" owns no autos,` Code 8 (hired) and 9 (non -owned); and (3) Workers' Compensation: Workers' Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer's Liability Insurance.

(ii) Minimum Limits of insurance. CONSULTANT shall maintain limits no less than: (1) Commemial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. 9 Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Aulomob le &ao"1114Y.. .1V 1Gr1.7 Y'alr :yL,Vvv�Vw. F%'l E{4Y1YG111. 1V1 L"Wely 111JM1''w— 1.1v'.r�.1c' r
Workers' Compensation. Workers' Compensation limits as required by the Labor Code of the State of Califomia with Statutory Limits, (4) Employer's Liability: Employer's Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer's Liability coverage may waived by the CITY if CITY receives written verfication that CONSULTANT has no employees.

If the CONSULTANT maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the CITY requires and shall be entitled to the broader coverage and/or the higher limits maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified` minimum limits of insurance and coverage shall be available to the CITY.

C. Professional Liabil' Errors & Omissions .- CONSULTANT shall procure and maintain, and require its sub -consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000000 in the aggregate, and shall be endorsed to include contractual liability. If the CONSULTANT maintains broader coverage and/or higher limits than the minimum shown in this subdivision(B), the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by the CONSULTANT. Any available insurance proceeds in excess of the specifted minimum limits of insurance and coverage shall be available to the CITY.

D. Insurance Endorsements. The insurance policies shall contain the fallowing provisions, or CONSULTANT shall provide endorsements on forms approved by the CITY to add the following provisions to the insurancepolicies:
(i) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the CITY, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the CONSULTANT, including materials, parts or equipment furnished in connection with suchwork, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the CITY, its directors, officials officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the CONSULTANTs scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the CONSULTANT'S insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 2010, CG 20 26, CO 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (ii) Waiver of Subrogation. CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the CITY by virtue of the payment of any loss under said insurance policies set forth herein.

CONSULTANT agrees to obtain any endorsement that may be necessary to affect this waiver of s

subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer.
(Hi) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the CITY; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the CITY, its directors, officials, officers, employees, agents and volunteers.

E Primary Coverage. For any claims related to this Agreement, the CONSULTANT's insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 0413 with respect to the CITY, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, ;its directors, officials, officers, employees, agents and volunteers shall be excess of the CONSULTANTS insurance and shall not be called upon to contribute with it in any way.

F. Separation of Insureds: No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the CITY, its directors officials, officers, employees, agents and volunteers.

G. Deductibles and Self -Insurance Re entions. Any deductibles or self - insured retentions must be declared to and approved by the CITY. CITY may require CONSULTANT to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self -insured retention may be satisfied by either the named insured or CITY.

H. Acceptabil ft of lnsurers. Insurance is to be placed with insurers with a current A.M. BesVs rating no less than A.VII authorized to do business in California, and satisfactory to the CITY.

1. Verification of CoverAgee. CONSULTANT shall furnish CITY with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the CITY before the commencement of work under this Agreement. However, faflure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the CONSULTANTS obligation to provide them to the CITY. The CITY reserves the right to require complete,certified copies of all required insurance policies, including endorsements, at any time.

J. Claims -Made Policies. If any of the policies provide coverage on a claims -made basis:
(i) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; () Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (III) if coverage is canceled, non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of this Agreement or 9 the date work commences under this Agreement, whichever is earliest, the CONSULTANT must purchase extended reporting coverage for a minimum of fire (5) years after completion of the Services under this Agreement
SECTION 26. DISCRIMINATION,
A. CONSULTANT ;agrees 'that no person shall be excluded from employment in the performance of this Agreement on grounds of rooe, creed, color, sex, age, handicap or marital status, place of national origin or any other basis prohibited by local, State or Federal low.

B. CONSULTANT agrees to comply with all local, State and Federal laws relating to equal employment opportunity rights.

SECTION 27. ENTIRETY OF AGREEMENT.

This Agreement contains the entire Agreement of CITY and CONSULTANT with respect to the writing and' executed by both parties.

SECTION 28. ATTORNEYS' FEES.

In the event that any action or proceeding is instituted for the breach of this Agreement, the prevailing party small be entitled to reasonable attorneys' fees.

SECTION 29. CONSISTENCY WITH CURRENT LAW.

A. It is the intent and understanding of the parties to this Agreement that every provision of taw required to be inserted in this Agreement is inserted here.

B. If through mistakes or otherwise, any of those provisions are not inserted in correct form, then this Agreement shall upon application of either party, be amended by insertion so as to comply strictly with the law and without prejudice to the rights of either party.

C. If this Agreement contains any unlawful provisions, not an essential part of the Agreement and which appear not to have been a controlling or material inducement to the making of this Agreement, those provisions shall be deemed of no effect, and shall upon application of either party be stricken from the Agreement without affecting the binding force of the Agreement as it shall remain after omitting those provisions.

SECTILM 30. VENu .
n the event that suit shall be brought by either partyy to this contract, the parties agree that venue shall be exclusively vested in the State courts of the County of Los Angeles or where appropriate, in the United States District Court, Central District of Calilbrpia, Los Angeles, Califomia SECTION 31. COUNTERPARTS.

This Agreement may be executed In counterparts, each of which shall be an original, but together shall constitute one and the same instrument
10 SECTION 32. INTERNAL INCONSISTENCIES.

If this Agreement contains any errors, inconsistencies with any attachments, ambiguities, or discrepancies, including, typographical errors, CONSULTANT shall request a clarification of those items by wrbV to the City Manager whose decision shall be binding upon the parties.

SECTION 33. CA"ONS AND HEADNO S.

The captions and headnotes or sections of this Agreement, and marginal notes are intended for convenience and reference purposes only and in no way define, limit or describe the scope or Intent of this Agreement:

SECTION EFFECT OF CONFLICT.

SECTION 36, SUBCONTRACTING.

CONSULTANT shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of CITY. CONSULTANT shall require and verify that all subcontractors maintain Insurance meeting all of the requirements set forth in this Agreement. CONSULTANT shall ensure that CITY is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subiect to all provisions stipulated in this Agreement
IN WITNESS WHEREOF, this Agreement for Professional Services has been duly authorized and executed by the parties hereto on the day and year first herein above written. "CITY"
CITY of Downey
By:

City Manager
ATTEST:

City Clerk
APPROVED A TO FORM:
41c Ar
City Attorney
"CONSULTANTT"

By: Ken K. Hira
its: President
ATTEST:
mcreTaT
APPROVED AS TO FORM:

Legal Counsel
R119.123859
3 :
{
12 EXHIBIT A

O E OF SERVICES
The Services to be performed by Consultant for the Project pursuant to this Agreement shall include but not be limited to the foilowing specific tasks:

Task 1: Project Kickoff / Site Tour A kick-off meeting between Consultant and Client will take place to determine the Client's goals, tour the Project site and trade area, and inflate the assignment. Client will provide Kosmont with existing relevant project, property, and/or market data (e.g., site information, concept plan, previous market or feasibility analyses, lists of potential tenants).

Task2: Opportunity Evaluation Kosmont will conduct a high-level economic analysis to understand market dynamics and assess the opportunity for a retailer! grocer at the Project. This may include demographic analysis utilizing ESRI Business Analyst Online, recent and historic real estate market analysis using Costar, and visitor / trade area anslytics using Placer.ai, an artificial intelligence mobile analytics data platform.

Task 3: Financial Analysis Kosmont will also assess the Project financial viability of grocery, allowing the City to better understand potential project financing gaps and potential public private transaction solutions.

Task 4: Economic Development Toolkit Based on the information gathered in Tasks 1-- 3, Consultant' will provide a menu of high-level economic development policy options I economic development tools to attract retail / grocery development. This could include public improvement 1 infrastructure funding, development code / fee flexibility, business attraction / long-term operating strategies, and tax -sharing agreements_ The information, data, and analysis gathered during Tasks 1-4 will be summarized in PowerPoint report form;
Task S: As -needed Advisory Services Budget permitting or based on a follow-on scope i budget approved by Client in advance, Kosmont is available to provide implementation services; this could include: • Real estate advisory activities such as developer negotiation assistance, and public private transaction structuring; - Additional in-depth economic analyses, strategies, opportunity site assessments, and reports; • Additional development and implementation of policy/ incentive programs; •Targeted marketing and outreach to developers, businesses, and investors; • Marketing attendance at industry -specific conferences (such as ICSC) - Other market and opportunity site analysis, which may or may not include Surplus Land Act navigation for City owned property 13 Exiii8a "S"

COMPENSATION
Presented below are the hourly rates and billing policies, as they would pertain to this engagement:

Classification Rate
Chairman & CEO $445.00/hour
President $385.00/hour
Sr. Vice President/Sr. Advisor/Sr. Managing Director $350.00/hour We President/Project Advisor $225.00/hour
Senior Project Analyst $195.00/hour
Project Analyst/Project Research $165.00/hour
Assistant Project Analyst/Assistant Project Manager $125.00/hour Project Promotion/Graph cs/GISMapping Services $ 95.001hour Clerical Support $ 70.001hour
Billina Policies
1) Professional printing, and delivery charges for messenger and overnight packages will be charged at cost
2) Project/Market data sources for support of evaluation and analysis e.g., ESRI, Placer.al, CoStarJ$TR, IMPLAN, ParcelQuest and other based on quoted prgect cost. 3) if Kosmont retains Third Party Vendor(s) for Client (with Client's advance approval), fees and cost will be billed to Client at 1.1X (times) flees and costs. 4) Consultant's attendance or participation at any public meeting, whether such participation is in person, digital, video and/or telephonic (e.g., City Council, planning Commission, Public Agency Board, other) requested by Client and are beyond those specifically identified in the Scope of Work will be billed at the professional services (hourly) fees as shown on this Exhibit A.
14 AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is entered into this day of May, 2023, by and between the CITY OF DOWNEY, a California municipal corporation and charter city (hereinafter referred to as "CITY") and Gilbert A. Livas, with the principal place of business at 10053 Whittwood Drive #11401, Whittier, CA 90603 ("Consultant").

NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:

SECTION 1. RECITALS.

This Agreement is made and entered into with respect to the following facts:
(a) CITY has considered the proposal, dated April 12, 2023 (the "Proposal"), from CONSULTANT for professional services including but not limited to, providing the services as described below in Section 6 of this Agreement. (b) CITY desires to have a highly qualified company to perform such services. (c) CONSULTANT represents and warrants that it is qualified to perform such services and has agreed to do so pursuant to this Agreement; and (d) CITY desires to contract with CONSULTANT on the basis of the following terms and conditions.

SECTION 2. RETENTION OF CONSULTANT.

SECTION 3. INDEPENDENT CONTRACTOR.

The parties hereby acknowledge that CONSULTANT is, and shall at all times remain as to CITY, a wholly independent contractor and shall not be considered to be an employee of CITY.

SECTION 4. PRINCIPAL REPRESENTATIVE
The City Manager or his designee of CITY shall be the principal representative of CITY for

ATTACHMENT C

purposes of this Agreement. Gilbert A. Livas, Consultant, or his designee shall be the principal representative of CONSULTANT for purposes of this Agreement.

SECTION 5. CONSULTANT NOT AGENT OF CITY.

A. CONSULTANT shall have no authority, expressed or implied, to act on behalf of CITY in any capacity whatsoever as an agent.

B. CONSULTANT shall have no authority, express or implied, pursuant to this Agreement to incur any debt or liability on behalf of CITY or otherwise bind CITY to any obligation whatsoever.

SECTION 6. SCOPE OF SERVICES.

SECTION 7. STANDARD OF PERFORMANCE.

SECTION 8. TIME.

B. Neither parry shall be considered in default of this Agreement to the extent performance is prevented or delayed by any cause, present or future, which is beyond the reasonable control of the party.

SECTION 9. QUALIFICATIONS.

A. CONSULTANT represents and warrants to CITY that it has all necessary professional licenses and/or certificates to legally perform the services under this Agreement.

B. CONSULTANT represents and warrants to CITY that CONSULTANT shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement all necessary licenses and certificates required of CONSULTANT to perform the services.

SECTION 10. TERM.

The term of this Agreement shall commence on May 9, 2023 and terminate on August 9, 2023.

The term of this Agreement may be extended by three one (1) month options by a written amendment to this Agreement signed by the City Manager and CONSULTANT.

SECTION 11. COMPENSATION.

A. CONSULTANT will perform those tasks and deliver the services described in this 2 Agreement, in accordance with the terms and provisions of this Agreement and incorporated herein by reference for a total contract price not to exceed Twenty one Thousand Dollars 001100 ($21,000.00) unless specifically approved in advance and in writing by the City Manager.

B. CONSULTANT shall be paid the compensation at the payment intervals set forth in the Payment Schedule (Section 12).

C. Authorized work shall be in strict compliance with the provisions of this Agreement.

SECTION 12. PAYMENT SCHEDULE.

A. CONSULTANT shall submit to CITY a monthly itemized statement which indicates work completed and Services rendered by CONSULTANT. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. CITY shall, within thirty (30) daysof receiving such statement, review the statement and pay all approved charges thereon.

B. CITY shall make no payment for any extra, further, or additional services not expressly set forth in this Agreement unless such extra service and the price thereof is agreed to in writing and executed by City Manager prior to the time that such extra service is rendered.

SECTION 13. COMPENSATION WITHHELD.

A. When the CITY shall have reasonable grounds for believing that CONSULTANT will be unable to perform this Agreement fully and satisfactorily within the time fixed for performance; or a meritorious claim exists or will exist against CONSULTANT or CITY arising out of the negligence of CONSULTANT or CONSULTANT's breach of any provision of this Agreement, then the CITY may withhold payment of any amount otherwise due and payable to CONSULTANT under this Agreement.

B. Any amount so withheld may retained by CITY for that period as it may deem advisable to protect CITY against any loss and may, after written notice to CONSULTANT, be applied in satisfaction of any claim described here.

C. This provision is intended solely for the benefit of CITY and no person shall have any right against the CITY or claim against CITY by reason of the CITY's failure or refusal to withhold monies.

D. No interest shall be payable by CITY on any amounts withheld under this provision.

E. This provision is not intended to limit or in any way prejudice any other right of CITY.

SECTION 14. RIGHT TO AUDIT AND INSPECT.

CITY shall have the right to audit and inspect all books and records kept by CONSULTANT in connection with the operation and services performed under this Agreement. CONSULTANT shall maintain full and accurate records with respect to all matters covered under this Agreement for a period of three years after the expiration or termination of this Agreement. CITY shall have the right to access and examine such records during normal business hours and to audit such records, to make transcripts therefrom and to inspect all program data, documents, "proceedings and activities.

SECTION 15. OWNERSHIP OF WRITTEN PRODUCTS.
3 All reports, documents or other written material ("written products") developed by CONSULTANT in the performance of this Agreement shall be and remain property of CITY without restriction or limitation upon its use or dissemination by CITY. CONSULTANT may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by CONSULTANT.

All data, documents, discussion, or other information developed or received by CONSULTANT or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONSULTANT without prior written consent by CITY. CITY shall grant consent if disclosure is legally required. All CITY data shall be returned to CITY upon the termination or expiration of this Agreement SECTION 16. RIGHT OF TERMINATION.

A. This Agreement may be terminated by either party with or without cause, upon ten (10) days written notice to the other party.

C. All CITY data, documents, objects, materials or other tangible things shall be returned to CITY upon termination or expiration of this Agreement.

SECTION 17. INDEMNITY.

The CONSULTANT's duty to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that CONSULTANT and/or its personnel are employees of the CITY, have been misclassified as an independent contractors, or failed to pay any or all necessary state or federal withholdings and/or taxes. CONSULTANT shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legalproceedings of every kind that may be brought or instituted against CITY, its directors, officials, officers, employees, agents or volunteers. CONSULTANT shall pay and satisfy any judgment, award or decree that may; be rendered against CITY or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. ;CONSULTANT shall reimburse CITY and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal

expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONSULTANT's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CITY, its directors, officials officers, employees, and agents or volunteers. CONSULTANT shall not be obligated to defend, indemnify or hold the CITY harmless in any manner whatsoever for any claims or liability arising solely out of the CITY's own negligent acts, errors or omissions or willful misconduct.

B. Design Professionals. The provisions of this subdivision (B) shall apply only in the event that CONSULTANT is a "design professional" within the meaning of California Civil Code section 2782.8(c). _ If CONSULTANT is a "design professional" within the meaning of Section 2782.8(c), then, notwithstanding subdivision (A) above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and 2782.6), CONSULTANT shall defend (with legal counsel reasonably acceptable to CITY), indemnify and hold harmless CITY and CITY's officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of CONSULTANT, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person; that any of them control, arising out of CONSULTANT's performance of any task or service for or on behalf of CITY under this Agreement. The CONSULTANT's duty to indemnify' shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that CONSULTANT and/or its personnel are employees of the CITY, have been misclassified as an independent contractors, or failed to pay any or all necessary state or federal withholdings and/or taxes. Such obligations to defend, hold harmless and indemnify CITY or any CITY officers, officials, employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of CITY or such CITY officers, officials, employees, volunteers and agents. CONSULTANT's cost to defend CITY and/or CITY's officers, officials, employees or volunteers against any such Claim shall not exceed CONSULTANT's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section'2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, CONSULTANT shall meet and confer with CITY (and, if applicable, other parties) regarding any unpaid defense costs. To the extent CONSULTANT has a duty to indemnify CITY or any CITY officers, officials, employees, volunteers and/or agents under this subdivision (B), CONSULTANT shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from CONSULTANT's negligence, recklessness or willful misconduct.

SECTION 18. CONSULTANT'S LIABILITY FOR PUBLIC LIABILITY AND PROPERTY DAMAGE.

CONSULTANT shall assume all responsibility for damages to property or injuries to persons, including accidental death, which may be caused by CONSULTANT's negligent performance of this Agreement, whether such performance be by themselves, or their agents, or whether such damage shall accrue or be discovered before or after termination of this Agreement.

SECTION 19. LIABILITIES.

B. Nothing in this Agreement shall be construed to give any person other than CITY and

CONSULTANT any legal or equitable rights, remedy or claim under this Agreement.

SECTION 20. CONFLICT OF INTEREST.

B. CONSULTANT further agrees that in the performance of this Agreement, no person having an interest of the above nature shall be employed by him or her.

C. No person who contracts with CITY, either for the rendition of personal services shall make any contribution to a CITY official or candidate for CITY office.

SECTION 21. NOTICES.

Any notices, bills, invoices or reports required by this Agreement shall be deemed received on:
(1) the date if delivered by hand, facsimile or overnight courier service during CONSULTANT's or CITY's regular business hours; or (2) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or such other addresses as the parties may, from time to time designate in writing):

TO CITY: City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Attn: City Manager
With courtesy copy to., City of Downey
City Attorneys' Office
11111 Brookshire Avenue
Downey, CA 90241
TO CONSULTANT: Gilbert A. Livas
10053 Whittwood Drive #11401
Whittier, CA 90603
Phone: (562) 318-4265
Attn: Gilbert A. Livas
SECTION 22. BINDING EFFECT.

This Agreement shall be binding upon the parties hereto and their successors in interest.

SECTION 23. ASSIGNMENT.

rights or obligations hereunder without the City's prior written consent shall make such assignment, transfer, conveyance, pledge or other disposition null and void.

B. The consent of CITY to an assignment shall not be unreasonably withheld, but prior to approving any assignment involving the performance of any obligations pursuant to this Agreement, CITY shall be satisfied by competent evidence that the assignee is financially able and technically qualified to perform those services proposed to be assigned.

C. In the event of such assignment, CITY may condition the same so as to ensure compliance with the provisions of this Agreement.

D. CITY'S consent to one assignment shall not be deemed to constitute consent to future assignments. _ CONSULTANT acknowledges that CITY's written consent must be first obtained prior to each assignment, transfer, conveyance, pledge or other disposition.

SECTION 24. COMPLIANCE WITH LAWS.

CONSULTANT shall comply with all applicable laws in performing its obligations under this Agreement. CONSULTANT shall be liable for all violations of such laws and regulations in connection with this Agreement. If the CONSULTANT performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the CITY, CONSULTANT shall be solely responsible for all costs arising therefrom. CONSULTANT shall defend, indemnify and hold CITY, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. CONSULTANT's violation of such laws, rules and regulations shall also constitute a material breach of this Agreement.

SECTION 26. INSURANCE,
A. Time for Compliance. CONSULTANT shall not commence the Services or the Project under this Agreement until it has provided' evidence satisfactory to the CITY that it has secured all insurance required under this section. In addition, CONSULTANT shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the CITY that the subcontractor has secured all insurance required under this section. The CITY reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances.

B. Minimum Requirements. CONSULTANT shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the CONSULTANT, its agents, representatives, employees or subcontractors. CONSULTANT shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(i) Minimum Sco a of Insurance. (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an `occurrence" basis including products and completed ,operations, property damage, bodily injury and personal and advertising injury; (2) Automobile Liability: Insurance Services Office Dorm Number CA 0001 covering Code 1 (any auto) or if CONSULTANT owns no autos, Code 8 (hired) and 9 (non -owned); and (3) Workers' Compensation: Workers' Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer's Liability Insurance.

(ii) Minimum Limits of Insurance, CONSULTANT shall maintain limits no less than: (1) Commercial General Liability (CGQ: No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreementllocation (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability. No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation: Workers' Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer's Liability: Employer's Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer's Liability coverage may be waived by the CITY if CITY receives written verification that CONSULTANT has no employees.

If the CONSULTANT maintains broader coverage andlor higher limits than the minimum shown in this subdivision 3.2.10.2, the CITY requires and shall be entitled to the broader coverage and/or the higher limits maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.

C. Insurance Endorsements. The insurance policies shall contain the following provisions, or CONSULTANT shall provide endorsements on forms approved by the CITY to add the following provisions to the insurance policies: - W Additional Insured Status. The Commercial General Liability - policy shall be endorsed to state that: (1) the CITY, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Projector operations performed by or on behalf of the CONSULTANT, including materials, parts or equipment furnished in connection with such work,Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the CITY, its directors, officials, ; officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the"CONSULTANT's scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the CONSULTANT's insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used).
(ii) Waiver of Subrogation. CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the CITY by virtue of the payment of any loss under said insurance policies set forth herein.

CONSULTANT agrees to obtain any endorsement that may be necessary to affect this waiver of 8 subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer.
(iii) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the CITY; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the CITY, its directors, officials, officers, employees, agents and volunteers.

D. Primary Coverage. For any claims related to this Agreement, the CONSULTANT's insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the CITY, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its directors, officials, officers, employees, agents and volunteers shall be excess of the CONSULTANT's insurance and shall not be called upon to contribute with it in any way.

E. Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. in addition, such insurance shall not contain any special limitations on the scope of protection afforded to the CITY, its directors officials, officers, employees, agents and volunteers.

F. Deductibles and Self -Insurance Retentions. Any deductibles or self insured retentions must be declared to and approved ;by the CITY. CITY may require CONSULTANT to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self -insured retention may be satisfied by either the named insured or CITY.

G. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIi, authorized to do business in California, and satisfactory to the CITY.

H. Verification of Coverage. CONSULTANT shall furnish CITY with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the CITY before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the CONSULTANT's obligation to provide them to the CITY. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time.

Claims -Made Policies. If any of the policies provide coverage on a claims -made basis:
0) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (ii) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (iii) If coverage is canceled, non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of this Agreement or

the date work commences under this Agreement, whichever is earliest, the CONSULTANT must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement.

SECTION 26. DISCRIMINATION.

A. CONSULTANT agrees that no person shall be excluded from employment in the performance of this Agreement on grounds of race, creed, color, sex, age, handicap or marital status, place of national origin or any other basis prohibited by local, State or Federal law.

B. CONSULTANT agrees to comply with all local, State and Federal laws relating to equal employment opportunity rights.

SECTION 27. ENTIRETY OF AGREEMENT.

This Agreement contains the entire Agreement of CITY and CONSULTANT with respect to the subject matter hereof, and no other agreement, statement, or promise made by anyparty, or to any employee, officer, or agent of any party, which is not contained in this Agreement shall be binding or valid. Amendments or modifications to this Agreement shall be effective and binding only if made in writing and executed by both parties.

SECTION 28. ATTORNEYS' FEES.

In the event that any action or proceeding is instituted for the breach of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, SECTION 29. CONSISTENCY WITH CURRENT LAW.

A. It is the intent and understanding of the parties to this Agreement that every provision of law required to be inserted in this Agreement is inserted here.

B. If through mistakes or otherwise, any of thoseprovisions are not inserted in correct form, then this Agreement shall upon application of either party, be amended by insertion so as to comply strictly with the law and without prejudice to the rights of either party.

C. if this Agreement contains any unlawful provisions, not an essential part of the Agreement and which appear not to have been a controlling or material inducement to the making of this Agreement, those provisions shall be deemed of no effect, and shall upon application of either party be stricken from the Agreement without affecting the binding force of the Agreement as it shall remain after omitting those provisions.

SECTION 30. VENUE.

SECTION 31. COUNTERPARTS.

This Agreement may be executed in counterparts, each of which shall be an original, but together shall constitute one and the same instrument.
10 SECTION 32. INTERNAL INCONSISTENCIES.

If this Agreement contains any errors, inconsistencies with any attachments, ambiguities, or discrepancies, including typographical errors, CONSULTANT shall request a clarification of those items by writing to the City Manager whose decision shall be binding upon the parties.

SECTION 33. CAPTIONS AND HEADNOTES.

SECTION 34. EFFECT OF CONFLICT.

SECTION 35. SUBCONTRACTING.

CONSULTANT shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of CITY. CONSULTANT shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. CONSULTANT shall ensure that CITY is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain "a provision making them subject to all provisions stipulated in this Agreement.

IN WITNESS WHEREOF, this Agreement for Professional Services has been duly authorized and executed by the parties hereto on the day and year first herein above written.

ATTEST:

City Clerk
APPROVED AS TO FORM:

City Attorney
"CITY"
CITY of Downey
By:

City Manager
"CONSULTANT"

By:

Its:

ATTEST:

Secretary
APPROVED AS TO FORM:

Legal Counsel
12 EXHIBIT A

SCOPE OF SERVICES
The Services to be performed by Consultant for the Project pursuant to this Agreement shall include but not be limited to the following specific tasks:
• Facilitate strategic development meetings
• Review all prior documentation related to a City designated business including but not limited to sales tax agreements, development agreements, and Section 108 funding agreements
• Serve as a liaison and negotiation advisor for the City • Attend all meetings with city development team, applicants and their representatives • Provide feedback and recommendations on funding alternatives • Review of all proposed site maps
13 EXHIBIT "B"

COMPENSATION
Presented below is the compensation rate and billing policies, as they would pertain to this engagement:
• Monthly retainer fee of $7,000
• Fee covers all meetings, phone calls, document analysis and reviews. • There is no charge for parking, copies, mileage, travel, incidental copies, or expenses. 14

Downey City CouncilMay 23, 2023

Downey City Council
May 23, 2023